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March 27, 2011




Page: 25/36

Home > 2011 Issues > March 27, 2011

News Analysis

Public confidence in judiciary revived
A lot remains to be done, rot runs deep

By Shyam Khosla

THE Supreme Courtís robust intervention in several crucial cases of major irregularities and corruption in high place has set in motion the revival of public confidence in judiciary. The bench headed by Chief Justice S H Kapadia nullified the appointment of P J Thomas as Chief Vigilance Commissioner, though it was argued on behalf of the government that the court couldnít go into the merit of the appointment made on the recommendation of the high powered committee chaired by the Prime Minister and that merit and selection of the candidate was the sole prerogative of the executive. There is absolutely no doubt that its sensitivity towards institutional integrity of CVC - the top anti-corruption watchdog - prompted the court to quash the appointment without doubting Thomasí personal integrity. The fact that the person concerned stood charge-sheeted in a corruption case was not brought to the notice of the selection committee was a major infirmity is the selection in the eyes of the law. Further, the court stipulated that whenever two members of the CVC selection committee differed with the third member, they should provide reasons for overruling the dissent as is done in reasoned verdicts by the courts. The judiciary has, thus, wrested the moral edge from the executive asking the latter to observe "fairness in action".

Equally heartening is the manner in which another bench headed by Justice J S Singhvi forced the CBI to conduct a thorough enquiry in the 2G scam in the light of the CAG report that indicted the government for waiving off for personal reasons money that was legitimately due to the public exchequer. Since the government of the day didnít act on the CAGís damning report and a senior minister went round saying loss to the exchequer was zero, the court decided to robustly monitor the CBI probe to ensure accountability. Yet another bench headed by Justice B Sudershan Reddy relentlessly harangued the government to take concrete steps to bring back the black money parked in tax havens. The governmentís reluctance to move in the matter is most disturbing, commonly held public perception is that several top persons in politics, bureaucracy and corporate world are involved in the racket. The bench criticised the shoddy investigations by the Enforcement Directorate into these cases, including the one pertaining to allegations against Hasan Ali Khan for laundering black money running into thousands of crores. The court virtually rebuked the government for treating these cases as tax evasion and took pains to point out that these pertains to much more serious crimes including funding terror. Soft paddling of these crimes by the government so annoyed the bench that it blurted out, "What the hell is going on in this country?" This indeed is the articulation of public refrain about corruption in high places.

The sting and the depth of orders and judgments in the above cases has rattled the Congress-led government, the bureaucrats and business houses, including those who were earlier perceived to be ethical and people-friendly. The quashing of CVCís appointment has severely undermined the credibility of the "honest" Prime Minister, more so, because he had stoutly defended Thomasí appointment. His grudging acceptance of responsibility for the "error in judgment" has not enhanced his prestige. The question being asked is was it Prime Ministerís personal decision to select Thomas in the face of tough reservations expressed by Sushma Swaraj - a member of the selection committee - or was it a decision taken somewhere else? BJP stalwart L K Advani has recently recalled that on an earlier occasion when he was a member of the CVC selection committee, the Prime Minister gave in and arrived at a consensus on another name only after MoS in PMO Prithvi Raj Chavan fell in line. It leaves one with the disturbing perception that the Head of the Government canít take a crucial decision without a nod from one of his deputies who represents Sonia Gandhi in the PMO. Is an extra-constitutional authority running this government?

Unfortunately, Supreme Courtís reputation took a battering under Kapadiaís predecessors- Justice Y K Sabharwal and Justice K G Balakrishanan. Although Justice Sabharwal will be remembered for his landmark verdict on the imposition of Presidentís rule in Bihar, his reputation was mired by his handling of the cases dealing with sealing and demolition of illegal commercial buildings in Delhi. Several eminent citizens, including jurists, requested him after his retirement to seek an independent enquiry to clear his name. Justice Sabharwalís refusal to submit him to an enquiry and the law ministryís refrain that there was no law to proceed against a retired CJI did no good to the image of the higher judiciary. Justice Balakrishnan is also in the line of fire from several quarters. There are serious allegations that his family amassed huge wealth and went on a land purchasing spree during his tenure as the Chief Justice of India.

Judicial activism in its pejorative sense is when the judge does something that he ought not to be doing. Judiciary has been, time and again, criticised for such activism. A case in point is the apex courtís intervention in the Godhra carnage and post-Godhra riots leading to a needless five year stay on the investigation and trial. Politically motivated campaigns by sections of media and foreign funded NGOs masquerading as human right activists shouldnít influence the functioning of judiciary, as it did in several sensitive cases like the Godhra carnage and the riots it provoked. The victims, their friends and relatives as also the accused, some of whom were later acquitted, had to wait for nine long years for the fast track court to deliver its verdict. The same is true of intervention in the judicial process by worthies who indulge in what in reality are Personal Interest Litigations. These petitions shouldnít be entertained indiscriminately and without application of mind to prevent the abuse of this useful instrument. It is gratifying that the Supreme Court has in recent months thrown out of the window several PILs relating to governance on the sound premise that courts canít encroach into the executive and legislature domains. And yet it entertained PIL filed by eminent citizens, including jurists, against the appointment of CVC.

Chief Justice Kapadiaís scheme for institutional revival is yet to permeate through the system. Judiciary suffers from several infirmities and the rot in the system runs deep. The CBI has registered a case of corruption against a High Court judge a day before she retired. Impeachment proceedings against a High Court judge are underway. Less said the better so far as lower judiciary is concerned. Judges are over-worked and function from dilapidated buildings, there is infrastructural deficit, poorly-lit and dull court rooms with rickety fans are the norms in districts. Corruption is rampant and the accused rot in jails for year as courts grant adjournment after adjournment without reason and rhyme. Judicial delays are one of the worst infirmities from which our legal system suffers. Backlog of cases are mounting year after year. As per the figures available with the Supreme Court as in October 2010, 2.78 crore cases were pending in subordinate courts while the High Courts had a backlog of 41 lakh cases. More than 50,000 cases are pending in the apex court. The government has recently decided to appoint qualified court managers in subordinate courts as well as High Courts to assist and support judges. This, it is hoped, would lessen the workload of the judges. While it is a welcome move, it alone wonít solve the problem of mounting backlog of cases. Judiciary no longer attracts the talent it used to. To stem the rot in judiciary is a Herculean task. All three organs of the state - executive, legislature and judiciary - will have to join hands to reform our judicial system if it has to regain public confidence and credibility.




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